Richard H. Fallon, Jr.

Story Professor of Law

Biography

Richard H. Fallon, Jr., joined the Harvard Law School faculty as an assistant professor in 1982, was promoted to full professor in 1987, and is currently the Story Professor of Law and an Affiliate Professor in the Government Department. Fallon is a graduate of Yale University (History, 1975) and Yale Law School (1980). He also earned a B.A. degree in Philosophy, Politics, and Economics from Oxford University (1977), which he attended as a Rhodes Scholar. Before entering teaching, Fallon served as a law clerk to Judge J. Skelly Wright and to Justice Lewis F. Powell of the United States Supreme Court. Fallon has written extensively about Constitutional Law and Federal Courts Law. He is the author of The Dynamic Constitution (Cambridge University Press, 2d ed. 2013) and Implementing the Constitution (Harvard University Press, 2001) and a co-editor of Constitutional Law: Cases-Comments-Questions (12th edition 2015) and Hart & Wechsler’s The Federal Courts and the Federal System (7th ed. 2015). Fallon is a fellow of the American Academy of Arts and Sciences and a member of the American Law Institute. He is a two-time winner of Harvard Law School’s Sacks-Freund Award (2001 and 2006), which is voted annually by the School’s graduating class to honor excellence in teaching.

The best case for judicial review in politically and morally healthy societies does not depend (as is commonly believed) on the idea that courts are more likely than legislatures to define vague rights correctly. It rests instead on the subtly different ground that legislatures and courts should both be enlisted to protect fundamental rights and, accordingly, that both should have veto powers over legislation that might reasonably be thought to violate such rights.
In developing this case for judicial review, Professor Fallon proceeds by confronting recent, influential, philosophically probing arguments against judicial review by Professor Jeremy Waldron. Professor Fallon concedes arguendo that, as Professor Waldron argues, courts are no better than legislatures at defining rights correctly, but maintains that the crucial question is not whether courts or legislatures are less likely to err, but which kinds of errors are most important to avoid – those that result in rights being overprotected or those that result in rights being infringed. Insofar as judicial review can be designed to prevent errors in just one direction, involving failures to protect rights adequately, then judicial review may be supportable even if courts are no better than legislatures at identifying rights correctly. Professor Fallon also argues, contra Professor Waldron, that judicial review can actually contribute to the political legitimacy of an otherwise democratic scheme of government when the demands of political legitimacy are understood correctly.
Professor Fallon’s revised justification for judicial review, which does not presume courts to be better than legislatures at identifying fundamental rights, has important implications for how judicial review should be practiced. It implies a diminished role for courts in cases in which fundamental rights are pitted against one another, such that the overenforcement of one entails the underenforcement of the other. It also implies that courts should withhold review when legislatures conscientiously seek to protect one fundamental right without plausibly threatening another.

Legitimacy is a term much invoked but little analyzed in constitutional debates. Uncertainty and confusion frequently result. This Article fills a gap in the literature by analyzing the idea of constitutional legitimacy. It argues that the term invites appeal to three distinct kinds of criteria that in turn support three distinct but partly overlapping concepts of legitimacy - legal, sociological, and moral. When we examine legitimacy debates with these three concepts in mind, striking conclusions emerge. First, the legal legitimacy of the Constitution depends more on its present sociological acceptance than on the (questionable) legality of its formal ratification. Second, although the Constitution deserves to be recognized as morally legitimate, it is only "minimally" rather than "ideally" so: it is not morally perfect, nor has it ever enjoyed unanimous consent. Third, because the Constitution invites disagreement about what it means and how it should be interpreted, many claims about the legal legitimacy of practices under the Constitution rest on inherently uncertain foundations. Significantly, however, a virtual consensus exists that at least some judicial precedents suffice to support future claims of legitimate judicial authority, even when those precedents were themselves erroneously decided in the first instance. Like the legal legitimacy of the Constitution, the legal legitimacy of precedent-based decisionmaking arises from sociological acceptance. Fourth, in the absence of greater legal and sociological consensus, judgments about many purportedly legal questions, including questions of judicial legitimacy, frequently reflect assumptions about the moral legitimacy of official action. Realistic discourse about constitutional legitimacy must therefore reckon with the snarled interconnections among constitutional law, its sociological foundations, and the felt imperatives of practical exigency and moral right.

We live in a time of anxiety about the rule of law. In railing against individual judges and their decisions, angry protesters—including elected officials and the President—presume a knowledge of what the Constitution requires, judicial pronouncements to the contrary notwithstanding. Recent bluster raises a question about what would occur if the President ordered government officials to defy a judicial ruling. The idea that the Supreme Court has ultimate authority in matters of constitutional interpretation—which often rides under the heading of “judicial supremacy”—has acquired strong currency. In the history of American political ideas, it has substantially eclipsed “departmentalist” theories, which hold that each branch of government should interpret the Constitution for itself, and an allied notion of “popular constitutionalism.” In the view of many, the rule of law requires judicial supremacy.
This Article probes the concepts of judicial supremacy, departmentalism, popular constitutionalism, and the rule of law, all of which possess relatively timeless importance. In doing so, it sheds light on issues of immediate practical urgency. The truth, terrifyingly enough under current circumstances, is that our system is not, never has been, and probably never could be one of pure judicial supremacy. In principle, moreover, a regime in which judicial review operates within “politically constructed bounds”—and judicial rulings on constitutional issues are at risk of occasional defiance—is entirely compatible with rule-of-law ideals.
In our current political context, there is abundant ground for anxiety about the future of rule-of-law constitutionalism. But judicial supremacy is not the answer to any significant legal, constitutional, or political problem. An adequate response will require repair of the ethical commitments—among elected officials and the public, as well as the Judicial Branch—that the rule of law requires.

"Why do self-proclaimed constitutional “originalists” so regularly reach decisions with a politically conservative valence? Do “living constitutionalists” claim a license to reach whatever results they prefer, without regard to the Constitution’s language and history? In confronting these questions, Richard H. Fallon reframes and ultimately transcends familiar debates about constitutional law, constitutional theory, and judicial legitimacy.
Drawing from ideas in legal scholarship, philosophy, and political science, Fallon presents a theory of judicial legitimacy based on an ideal of good faith in constitutional argumentation. Good faith demands that the Justices base their decisions only on legal arguments that they genuinely believe to be valid and are prepared to apply to similar future cases. Originalists are correct about this much. But good faith does not forbid the Justices to refine and adjust their interpretive theories in response to the novel challenges that new cases present. Fallon argues that theories of constitutional interpretation should be works in progress, not rigid formulas laid down in advance of the unforeseeable challenges that life and experience generate.
Law and Legitimacy in the Supreme Court offers theories of constitutional law and judicial legitimacy that accept many tenets of legal realism but reject its corrosive cynicism. Fallon’s account both illuminates current practice and prescribes urgently needed responses to a legitimacy crisis in which the Supreme Court is increasingly enmeshed." -- publisher

Nearly all of us who participate in constitutional argument in subjective good faith share a second-order methodology of constitutional decision-making—that is, an approach to working out both our first-order theories of constitutional interpretation and our judgments about appropriate results in particular cases. That shared method involves a search for reflective equilibrium between our prior or intuitive methodological assumptions (which sometimes may be vague or indeterminate) and our intuitive judgments concerning the appropriate results in particular cases. If our ex ante methodological theories are underdeterminate, reflection on new cases’ facts will lead us to specify our premises more fully. Moreover, in instances of initial conflict between judgments of desirable case-specific outcomes and previously adopted methodological commitments, the Reflective Equilibrium Hypothesis advanced in this Essay holds that adjustment can occur on either end. If we argue about constitutional issues in good faith, normally we will adapt our judgments concerning correct results to methodological premises that we have previously endorsed. But sometimes reflection on new cases will provoke an elaboration, qualification, or rethinking of methodological commitments. After advancing the Reflective Equilibrium Hypothesis as an explanatory theory of the main currents of constitutional argumentation, this Essay offers a brief normative defense.

This Essay seeks to reframe a longstanding debate by propounding a novel theory of judicial candor. Previous commentators on judicial candor have failed to draw a crucial distinction between obligations of candor, breaches of which constitute highly culpable failures, and ideals of candor that even the best judges fail to satisfy fully. This Essay argues for a theory of judicial candor that defines both minimal obligations and aspirational ideals and that explains the linkages between the two.
This Essay’s potentially larger contribution lies in its provision of a template for thinking about judicial candor. Different people begin with different understandings or intuitive conceptions. To arbitrate among rival perspectives, this Essay posits that discussion needs to begin with familiar patterns of linguistic usage, but insists that analysis cannot stop there. Against the background of linguistic and theoretical disagreement, intellectual progress requires examination of why we have reason to care about judicial candor in the various senses in which that term can be used. At the last stage, the selection of a conception of judicial candor must turn on normative considerations. Consistent with that credo, this Essay not only explains, but also justifies, its conclusions about what judicial candor minimally requires and about the further ideals that it embodies, even if fallible and time-pressed human judges understandably fall short of ideal candor in many cases.

Debates about constitutional federalism—by which I roughly mean the division of powers and responsibilities between the national and state governments—abound. Participants typically cast such debates as constitutional in character. Nearly invariably, however, policy concerns exert a dominating influence, either on the surface or just beneath it. More often than not, proponents offer federalism-based arguments on behalf of conclusions that they value for policy-based reasons. Reciprocally, champions of particular theories of constitutional federalism typically argue that their visions would yield better outcome —as measured along some dimension—than would any other understanding of the Constitution’s structure. In an effort to chart some dimensions of the relationship between federalism-based arguments and more overtly normative or policy based arguments, I pursue three lines of inquiry in this Essay.

In this Essay, written in tribute to Dan Meltzer, I shall attempt to explicate his views regarding statutory interpretation in general, thematic terms. In doing so, I shall register my agreement with virtually all of Dan’s conclusions and frequently echo his practically minded arguments in support of them. But I shall also advance arguments—with which I cannot be entirely sure he would have agreed—that seek to show that his position reflected theoretical insights about how language works, not only in law, but also more generally in life. By seeking simultaneously to defend Dan’s views and to build on them, this Essay may sometimes blur the line between explication and original argumentation.
Its methodology is, accordingly, risky, but I do not believe it is misplaced. As I hope will become clear, my blending of descriptive and interpretive claims with normative argumentation in some ways parallels the approach that Dan thought courts should take in acting as Congress’s junior partners.

Debates about legal interpretation frequently bypass or give short shrift to the more basic concept of legal "meaning." Seeking to rectify that deficiency, this Article explores the meaning of "meaning." Examination of familiar terms of legal argument reveals an astonishing number of possible senses of that term - and, correspondingly, an equally large number of possible referents for ultimate claims concerning what legal provisions mean. These referents include a statutory or constitutional provision's semantic or literal meaning, its contextual meaning as framed by the shared presuppositions of speakers and listeners, its "real" conceptual meaning, and its intended, reasonable, and previously interpreted meanings. Proponents of interpretive theories such as textualism and originalism sometimes suggest that legal meaning depends on prelegal, linguistic facts that make one of these kinds or senses of meaning uniquely correct. But that suggestion reflects a misunderstanding about how language works. Framing the challenge for legal interpretation as that of choosing the normatively best referent for claims of legal meaning from among otherwise eligible candidates, this Article shows that textualism and originalism, in particular, lack the resources to make the unique, consistent, categorical selections and exclusions that some versions of those theories purport to achieve. Like a variety of other interpretive theories, they lapse into reliance on case-by-case normative judgments. When understood against the background of a careful delineation of the choices that legal interpretation requires, the aspirations of textualism and originalism help to frame a fundamental question: Given the function of interpretive theories to guide or determine choices among otherwise plausible senses of legal meaning, should such theories do so on a categorical or a case-by-case basis? This Article advocates the latter approach. A due appreciation of the interpretive challenge - which frequently requires a choice among the literal, con-textually framed and limited, real conceptual, intended, reasonable, and interpreted meanings of statutory and constitutional provisions - reveals the stark hubris of proposals that commit in advance to categorical selections or even categorical exclusions.

The application of the doctrine of standing has become less and less predictable since the Supreme Court’s adoption of a tripartite test for standing in the 1970s. Professor Fallon analyzes the Court’s decisions in standing cases in order to discern patterns in the Court’s application of this test. Fallon concludes that the Supreme Court and legal scholars should embrace the fragmentation of the doctrine of standing and look to discernable patterns in the cases to find general rules of application for different contexts.

Part I presents the thesis that the Supreme Court frequently undertakes a multiplicity of history-based inquiries and weighs a variety of historically grounded considerations. Part I also argues (as some originalists recognize, but stringently exclusive originalists do not) that the original meaning of constitutional language was frequently vague or indeterminate. Accordingly, the Constitution’s application to current issues would often require a mix of historical and normative analysis even if original history were the only kind of history that mattered. Part II offers a preliminary exploration of why so many kinds of historical inquiry bear on constitutional and sometimes on statutory cases. Part III advances a jurisprudential argument in favor of a multi-factored approach to constitutional decisionmaking. Arguing that the foundations of law, including American constitutional practice, necessarily reside in social facts involving what is accepted as binding law, Part III establishes the radical, revisionary character of calls for exclusive originalism. Part IV defends what—adapting vocabulary from Professor David Strauss—I call a common law approach to determining the relative importance of varied kinds of historical phenomena in reaching conclusions of constitutional law. It analyzes a mixture of “easy” and “hard” federal courts cases to illustrate that almost no one, outside the context of a methodological debate about how to resolve understandably disputable cases, actually is an exclusive originalist, but that widespread convergence of judgment about the proper decision of constitutional cases typically occurs anyway. Part IV explains calls for exclusive originalism as the product of a largely misplaced anxiety about untrammeled judicial subjectivity. Part V provides a brief conclusion.

As much as - if not more than - any other lower federal court judge of his generation, J. Skelly Wright left large footsteps on the sands of time. As a district judge for the Eastern District of Louisiana from 1949 to 1962, he took a courageous leading role in desegregating the New Orleans schools. Braving social ostracism, death threats, and a cross-burning on his lawn, he brought about "not only the integration of the public schools in New Orleans but also the integration of universities, buses, parks, sporting events and voting lists, historic moves that reverberated elsewhere in the South in the 1950s and 1960s, the era of the civil rights campaigns." As a judge on the U.S. Court of Appeals for the District of Columbia Circuit from 1962 to 1988, Judge Wright wrote path-breaking opinions in a number of areas of the law. Many of his decisions attracted widespread academic commentary, most of it favorable but some critical. Welcoming the debates, Judge Wright published an accompanying stream of much-discussed articles in the nation's foremost law reviews. When Wright died in 1988, tributes described him as among "the outstanding jurists of the nation's history.

The Seventh Edition of this classic casebook brings it thoroughly up to date (as of December 31, 2014) and includes numerous revisions to enhance its teachability. The book’s depth of coverage and intellectual rigor remain unrivaled. In addition, each chapter has been carefully revised with an eye to making the material more accessible to students. A number of new introductory and explanatory notes help to frame the key issues raised by the materials. Moreover, the editors’ judicious revision and trimming of older material will permit assignments of manageable length, without sacrificing the scholarly comprehensiveness that has always been the Hart & Wechsler hallmark.

Richard H. Fallon, Jr., Three Symmetries Between Textualist and Purposivist Theories of Statutory Interpretation - and the Irreducible Role of Values and Judgment Within Both, 99 Cornell L. Rev. 685 (2014).

Justice Holmes famously observed that “[g]reat cases . . . make bad law.” The problem may be especially acute in the domain of national security, where presidents frequently interpret their own powers without judicial review and where executive precedents play a large role in subsequent interpretive debates. On the one hand, some of the historical assertions of presidential authority that stretch constitutional and statutory language the furthest seem hard to condemn in light of the practical stakes. On the other hand, to credit the authority of executive precedent risks leaving the president dangerously unbound.
To address the conundrum posed by executive precedent, this Article proposes a two-tiered theory for the interpretation of presidential powers. Framed as an analogy to a position in moral philosophy known as “threshold deontology,” two-tiered interpretive theory treats rules that restrict executive power as normally inviolable, not subject to a case-by-case balancing analysis. Analogously to threshold deontology, however, two-tiered theory also recognizes that when the costs of adherence to ordinary principles grow exorbitantly high, extraordinary interpretive principles should govern instead and should result in the upholding of broad presidential power. For reasons that the Article explains, resort to extraordinary reliance on second-tier justifications for assertions of sweeping executive authority involves a legal analogue to “dirty-handed” moral conduct and should be labeled accordingly. And executive precedents set in extraordinary, second-tier cases should not apply to more ordinary ones. Through its conjunction of elements, two-tiered interpretive theory furnishes analytical and rhetorical safeguards against executive overreaching, but also allows accommodations for truly extraordinary cases.

When Professor Martin Redish condemned abstention doctrines as violating norms of "institutional legitimacy," he provoked an informative debate, but one that has largely subsided. This Essay revisits the once-heated debate about abstention's legitimacy, clarifies its terms, and identifies its stakes. The legitimacy question is not whether abstention decisions are legally correct, but whether applicable statutes and the Constitution render such decisions ultra vires. Most often, the answer to that question is no. Recent versions of both textualist and purposivist theories of statutory interpretation recognize that statutory meaning always depends on "context." And when relevant statutes are read in a sufficiently capacious semantic context (as textualists would insist) or policy context (as purposivists would demand), abstention emerges as justified in some cases. Indeed, if abstention were illegitimate, then a number of other federal courts doctrines-many of which are difficult to justify by reference either to the language of pertinent statutes or to Congress's most pressing purposes in enacting them-would be illegitimate also.

Richard H. Fallon, Appraising the Significance of the Subjects and Objects of the Constitution: A Case Study in Textual and Historical Revisionism, 16 U. Pa. J. Const. L. 453 (2013).

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Abstract

In this short Article, I shall express some grounds for respectful skepticism, both about whether Rosenkranz has proven his claims and about whether courts should decide cases on the basis of his arguments, even if judges thought him more likely right than not about the significance that well-informed Americans of the Founding generation would have attached to the “subjects” and “objects” of the Constitution. But, I also hope to train attention on the general methodological challenge—partly for other law professors working in the field and especially for judges and Justices—that work such as Rosenkranz’s poses: How should we appraise, and what significance should we attach to, ingenious, provocatively novel theses that would make constitutional outcomes depend wholly on seemingly plausible, but not clearly proven linguistic and historical claims?

This article examines the increasingly common phenomenon of “scholars’ briefs” in which collections of law professors appear as amici curiae in litigation before a court. Arguing that many professors compromise their integrity by joining such briefs too promiscuously, the article proposes standards that professors should insist upon before signing amicus briefs that they do not write. The article's methodology involves comparisons among various roles that law professors sometimes play and the distinctive moral and ethical standards appropriate to each. Besides a thorough discussion of scholars’ briefs, the article includes broader analysis of law professors’ role-based ethical obligations.

An essay is presented on whether the theory of originalism of constitutional language is a rationalization for conservatism or a principled theory of interpretation. Several arguments on how constitutional language should be interpreted are that it should reflect the Framers' intent, how it is understood by the ratifiers, and the original public meaning of the constitutional language. The essayist explains that when practical consequences and political valences are not taken into consideration in the generality of cases, rationalization occurs.

The Justices of the U.S. Supreme Court have frequently insisted that “facial challenges” to the validity of statutes are and ought to be rare. Based partly on an empirical survey of all cases decided by the Court during six selected Terms, this Article reveals that assumption to be empirically false and normatively mistaken. Error on this point reflects broader confusions and misunderstandings. For example, it is not true that only a few especially stringent constitutional tests frame facial challenges. Even the rational basis test sometimes yields the conclusion that statutes are invalid in toto. The conventional wisdom also errs in positing that the Supreme Court can cure a statute’s facial defects merely by invoking a general “presumption of severability” under which, in a future case, any of a statute’s invalid applications can be separated from valid ones.
Besides revising the conventional wisdom about facial challenges, this Article locates the root of misunderstanding in the rhetoric of a relatively small number of much-cited cases. It also begins the reconstructive task of explaining when facial challenges do and do not succeed. That explanation has three parts. First, there is a crucial linkage between rulings of facial invalidity and the breadth of the reasons that the Supreme Court gives in upholding constitutional challenges. Second, the Court is often inattentive to severability issues, and its practice must be understood accordingly. Although this Article advances important rationalizing generalizations, it explains why the Court’s approach to severability cannot be captured in rigid rules. Third, many Supreme Court decisions rejecting facial challenges are best understood as finding facial challenges to be unripe, rather than categorically unavailable.

This Article provides a broad-lens, synoptic perspective on war-on-terrorism questions arising within the habeas corpus jurisdiction of the federal courts. Analytically, it develops a clear framework for sorting out the tangle of jurisdictional, substantive, procedural, and scope-of-review issues that habeas cases often present. Methodologically, it champions a common law—like approach to habeas adjudication under which courts must exercise responsible judgment in adapting both statutory and constitutional language to unforeseen exigencies.
The Article also takes substantive positions on a number of important issues. In the jurisdictional domain, it defends the Supreme Court’s controversial decision in Rasul v. Bush, which interpreted the habeas statute as it then stood to authorize inquiry into the lawfulness of detentions at Guantí¡namo Bay. The Article also argues, however, that a court would overstep if it read the Constitution as mandating review of detentions of aliens in such wholly foreign locales as Afghanistan or Iraq. Scrutinizing post-Rasul legislation that eliminates habeas for alien detainees and substitutes more limited review in the D.C. Circuit, the Article argues that the resulting scheme is constitutionally valid as applied to most cases in which the D.C. Circuit can exercise review, but invalid insofar as it entirely precludes detainees in the United States or at Guantí¡namo Bay from challenging their detention or conditions of confinement before a civilian court.
With respect to substantive rights, the Article argues that American citizens seized outside of battlefield conditions have a right not to be detained indefinitely without civilian trial. It explains why the constitutional rights of noncitizens are more limited, but argues that existing statutes should not be read to authorize aliens’ detention as enemy combatants when they are seized in the United States, away from any theater of combat. Finally, the Article analyzes some of the most important procedural and scope-of-review questions likely to come before habeas courts.

The history and practice of strict judicial scrutiny are widely misunderstood. Historically, the modern strict scrutiny formula did not emerge until the 1960s, when it took root simultaneously in a number of doctrinal areas. It did not clearly originate in race discrimination cases, as some have suggested, nor in free speech jurisprudence, as Justice Harlan once claimed.
Although strict scrutiny is widely assumed to be “strict in theory, but fatal in fact,” judicial practice in applying it has been complex, even conflicted. There are at least three identifiable versions of strict scrutiny, all subsumed under the same label. The result is uncertainty and sometimes confusion about which version the U.S. Supreme Court will apply in which cases.
Some of the confusion arises from the strict scrutiny test’s vague and ambiguous terms, which leave critical questions unanswered. Seeking answers to those questions through normative rather than doctrinal inquiry, this Article argues that the strict scrutiny test is best understood as mandating a proportionality inquiry. At least when challenged regulations would at best reduce risks or incidences of harm, rather than extirpate them completely, courts applying strict scrutiny must ask whether the benefits justify the costs in light of regulatory alternatives that would trench less deeply on constitutional rights but also be less effective in promoting their goals.

Bicentennial celebrations of Marbury v. Madison should recognize Marbury's influence in shaping a body of constitutional law that is not only rich and diverse but also tension-ridden. Marbury furnishes the canonical statement of the judicial role, but that statement is multiple, not singular. Specifically, Marbury exhibits three distinct faces. A "private-rights" face asserts that courts must decide constitutional issues when, but only when, necessary to adjudicate traditional disputes involving concrete injuries. A "special-functions" face implies that courts have a broader role in enforcing constitutional norms. A "political" or "prudential" face, which is suggested by Marbury's surrounding facts, counsels that courts should sometimes tailor their rulings to avoid collision with the political branches. Marbury's three faces frequently yield conflicting prescriptions. What is more, all help to shape contemporary constitutional law. The result is widespread doctrinal tension. In the literature on constitutional law and theory, varied strategies have emerged for dealing with the challenges and cognitive dissonance that doctrinal tension generates. Some strategies seek to establish doctrinal coherence through creative interpretation, policy-driven reform, or historical reconstruction. Others attempt to explain and disarm doctrinal conflict. But no one strategy can satisfy all of the demands for ordered understanding that a participant in constitutional practice might reasonably assert. Richness and diversity are the glory of Marbury's legacy, but tension and methodological disagreement are also integral to its heritage.

In this Essay, Professor Richard Fallon explains and defends the constitutional status of stare decisis. In part, Professor Fallon responds to a recent article by Professor Michael Stokes Paulsen, who argues that Supreme Court adherence to precedent is a mere “policy,” not of constitutional stature, that Congress could abolish by statute. In particular, Paulsen argues that Congress could enact legislation denying precedental effect to Supreme Court decisions establishing abortion rights. In reply, Professor Fallon contends that Paulsen's argument depends on contradictory premises. If stare decisis lacked constitutional stature, then under Paulsen's methodological assumptions it also would be indefensible as a “policy,” because a mere policy could not legitimately displace results that the Constitution otherwise would require. In defending the constitutional status of stare decisis, Professor Fallon develops arguments based on the text, structure, and history of the Constitution. But he emphasizes that the “legitimacy” of stare decisis is supported, partly independently, by its entrenched status and by the contribution that it makes to the justice and workability of the constitutional regime. More generally, Professor Fallon argues that constitutional legitimacy rests upon the relatively contestable bases of widespread acceptance and reasonable justice, and not upon “consent” to be governed by the written Constitution.

This book argues that the Supreme Court performs two functions. The first is to identify the Constitution's idealized "meaning." The second is to develop tests and doctrines to realize that meaning in practice. Bridging the gap between the two--implementing the Constitution--requires moral vision, but also practical wisdom and common sense, ingenuity, and occasionally a willingness to make compromises.
In emphasizing the Court's responsibility to make practical judgments, Implementing the Constitution takes issue with the two positions that have dominated recent debates about the Court's proper role. Constitutional "originalists" maintain that the Court's essential function is to identify the "original understanding" of constitutional language and then apply it deductively to current problems. This position is both unwise and unworkable, the book argues. It also critiques well-known accounts according to which the Court is concerned almost exclusively with matters of moral and constitutional principle.
Implementing the Constitution bridges the worlds of constitutional theory, political theory, and constitutional practice. It illuminates the Supreme Court's decision of actual cases and its development of well-known doctrines. It is a doctrinal study that yields jurisprudential insights and a contribution to constitutional theory that is closely tied to actual judicial practice.

Both within the Supreme Court and among scholarly commentators, a debate rages about when litigants should be able to challenge statutes as "facially" invalid, rather than merely invalid "as applied." To a large extent, this debate reflects mistaken assumptions. There is no single distinctive category of facial, as opposed to as-applied, litigation. All challenges to statutes arise when a litigant claims that a statute cannot be enforced against her. In the course of as-applied litigation, rulings of facial invalidity sometimes occur, but they do not reflect trans-substantive rules governing a purported general category of facial challenges. Rather, rulings that a statute is facially (or partly) invalid are the consequence of the particular doctrinal tests applied to resolve particular cases. Some doctrinal tests call for statutes to be tested on their faces, whereas others do not. Accordingly, debates about the permissibility of facial challenges should be re-cast as debates about the substantive tests that should be applied to enforce particular constitutional provisions. Third-party standing rules introduce a further element of plurality into the forms of constitutional adjudication. The resulting doctrinal structure is diverse, but probably no more so than are the rights that constitutional litigation seeks to vindicate.

A number of commentators have identified autonomy as a central value of the First Amendment. In this essay, Professor Fallon argues that the two leading conceptions of autonomy, positive and negative liberty, are overly simple and flawed. He argues that autonomy-based First Amendment theory should recognize two alternative conceptions: descriptive autonomy, which considers the impact of external causal factors on individual liberty, and ascriptive autonomy, which represents each person's sovereignty over her moral choices. Professor Fallon introduces a four-part framework to gauge the extent to which a person is descriptively autonomous. He notes that ascriptive autonomy is less analytically neat, but argues that the concept is also important to First Amendment jurisprudence because it "reflects an aspect of human self-understanding that descriptive autonomy fails to capture." Professor Fallon then explores the moral and policy issues that arise from distinguishing descriptive from ascriptive autonomy, concluding that both notions of autonomy are fundamental to the First Amendment. He warns, however, that because descriptive and ascriptive autonomy often pull in opposite directions, autonomy-based arguments frequently complicate rather than simplify First Amendment debates.

My basic thesis is that, in American constitutional law, rights typically do not operate, as we often assume, as conceptually independent constraints on the powers of government. We have no way of thinking about constitutional rights independent of what powers it would prudent or desirable for government to have. Balancing tests offer an obvious, banal example: the interests supporting claims of right are balanced against interests in upholding governmental power to determine what rights we actually have. But there are other, deeper interconnections as well. Throughout our structure of constitutional discourse, I shall argue, rights are conceptually interconnected with, and occasionally even subordinate to, governmental powers.

Although article III of the Constitution provides that the judicial power of the United States shall be vested in courts whose judges enjoy life tenure and protection from salary reduction, longstanding precedent and practice establish that Congress may create courts that lack these guarantees of judicial independence. In this Article, Professor Fallon criticizes the amorphous balancing test that the Supreme Court has recently employed to determine the constitutional permissibility of delegations of adjudicative power to non-article III federal tribunals. After identifying the competing practical and constitutional values, he argues that the best accommodation lies in an "appellate review" theory. Professor Fallon's theory broadly justifies congressional employment of non-article III tribunals to engage in initial adjudications, but holds that appellate review in a constitutional court is minimally necessary to protect article III values. To demonstrate that his suggested approach is workable as well as normatively attractive, Professor Fallon examines areas of the law in which appellate review has traditionally been regarded as unnecessary. He concludes that an appellate review theory requires few changes in current practice. Finally, the Article discusses the necessary scope of review by a constitutional court for article III's underlying values to be protected adequately.